Terms of Use and End User License Agreement

Last updated: September 2023

I. INTRODUCTION

These Terms of Use and End User License Agreement (collectively, the “Agreement”) together with all the documents referred to in it constitute a legally binding agreement made between you as a natural person (“you”, “your” or “user”) and AIBY Inc. (“we,” “us” or “our”), concerning your access to and use of “HitMeal - Nutrition Tracker” software application for mobile devices (the “App”). The App’s title may vary in countries other than the U.S. and is subject to change without specific notice.

All the documents that relate to the App are hereby expressly incorporated herein by reference.

Please read this Agreement carefully before you download, install or start using the App.

It is important that you read and understand this Agreement as by downloading, installing or using the App you indicate that you have read, understood, agreed and accepted the Agreement, which takes effect on the date on which you download, install or start using the App. By using the App you agree to abide by this Agreement.

If you do not agree with (do not accept) this Agreement, or if you do not agree with at least one of its provisions you may not access, download, install or start using the App, or in case you have already done anything of the above, you must promptly delete the App from any mobile device in your possession or under your control.

II. CHANGES TO THIS AGREEMENT

We reserve the right, at our sole discretion, to make changes or modifications to this Agreement at any time and for any reason. We will keep you informed about any changes by updating this Agreement. It is your responsibility to periodically review this Agreement to stay informed of updates. You will be deemed to have accepted the changes to any revised Agreement by your continued use of the App after the date such revised Agreement is posted. 

III. RESTRICTIONS ON WHO CAN USE THE APP

In order to download, install, access or use the App, you must reach the age of majority or legal age in your applicable jurisdiction (i. e. in most jurisdictions you must be at least eighteen (18) years of age or older).

All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by their parent or guardian to use the App. Therefore, if you are between the ages of thirteen (13) and seventeen (17) years and you wish to download, install, access, or use the App, before doing anything of the above you must: (a) ensure that your parent or guardian have read and agreed (get your parent or guardian’s consent) to this Agreement prior to you using the App; (b) have the power to enter into a binding agreement with us under any applicable law. 

Parents and guardians must directly supervise any use of the App by minors. It is the sole responsibility of parents and guardians to prevent any unauthorized, irrelevant, indecent and/or immoral use of the App by their minors who have not reached the age of majority or legal age in the applicable jurisdiction.

Any person under the age of thirteen (13) is not permitted to download, install, access or use the App.

You confirm that you have either reached the age of majority or legal age in the applicable jurisdiction (at least you are older than eighteen (18) years of age, or you are an emancipated minor, or possess a legal parental or guardian consent, and are fully able and competent to accept the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.

IV. GENERAL TERMS

The App is primarily devoted to nutrition and provides users with a calorie counter tool that allows them to keep a food diary and track calorie intake. The App also contains meal plans with specially prepared menus and recipes. Moreover, a database with a wide variety of recipes is available within the App. The users can search for recipes according to their needs and requirements using special filters. See the full performance list on the App’s page in the App Store. 

The App is intended only for your personal non-commercial use. You shall use the App only for the purposes mentioned above. 

V. PRIVACY POLICY

Your privacy is very important to us. Accordingly, we have developed the Privacy Policy in order for you to understand how we process, use and store information including personal data. Access to the App and use of the Services are subject to the Privacy Policy. By accessing the App and by continuing to use the Services, you are deemed to have accepted the Privacy Policy, and in particular, you are deemed to have acknowledged the ways we process your information as well as appropriate legal grounds for processing described in the Privacy Policy. We reserve the right to amend the Privacy Policy from time to time. If you disagree with any part of the Privacy Policy, you must immediately stop using the App and Services. Please read our Privacy Policy carefully.

VI. END USER LICENSE AGREEMENT. RULES AND REGULATIONS APPLICABLE TO USER CONTENT

Note that this subsection “INTELLECTUAL PROPERTY RIGHTS RELATED TO THE APP” does not apply to User Content (as defined below in this Agreement). The license terms and other regulations regarding User Content are set forth in this Section VI below under the subtitle “USER CONTENT”.

By using the App, you undertake to respect our intellectual property rights (intellectual property rights related to the App’s source code, UI/UX design, content material, copyright and trademarks, hereinafter referred to as the “Intellectual Property Rights”) as well as those owned by third parties.

As long as you keep using the App, we grant you a limited, non-exclusive, non-transferable non-sublicensable, non-assignable and revocable right to access and use the App pursuant to this Agreement (the “License”).

You may use our App solely for your own non-commercial purposes. You are bound to respect the copyrighted material within the App, you cannot sell pictures available in the App. 

The source code, design and content, including information, photographs, illustrations, artwork and other graphic materials, sounds, music or video (the “Works”) as well as names, logos and trademarks (the “Means of individualization”) within the App are protected by copyright laws and other relevant laws and/or international treaties, and belong to us and/or our partners and/or contractors, as the case may be.

The Works and Means of individualization may not be copied, reproduced, retransmitted, distributed, disseminated, sold, published, broadcasted or circulated whether in whole or in part, unless expressly permitted by us and/or our partners and/or contracted third parties, as the case may be.

All right, title and interest in and to the App and its content, the Works and Means of individualization as well as its functionalities (1) are the exclusive property of AIBY Inc. and/or our partners and/or contractors, (2) are protected by the applicable international and national legal provisions, and (3) are under no circumstances transferred (assigned) to you in full or in part within the context of the License herewithin.

We will not hesitate to take legal action against any unauthorized use of our trademarks, names or symbols to protect and restore our rights. All rights not expressly granted herein are reserved. Other product and company names mentioned herein may also be the trademarks of their respective owners.

USER CONTENT

You may have an opportunity to use the food recognition function within the App and obtain more nutrition information about all meal components you consume. For this purpose you may be asked to take a photo of your meal and/or upload necessary photo(s) directly from your photo library. Note that you shall retain the ownership rights to all photos you produced yourself and uploaded to the App (hereinafter referred to as “User Content”).

However, by using the App you hereby grant to us, as well as to our successors, affiliates, agents, assigns or anyone authorized to act on our behalf, a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable, irrevocable license and right to:

•   to store and process User Content within the App;

•   to modify User Content to fit the functionality of the App;

•   to transfer and sublicense User Content to third party service providers for the purposes of maintaining and providing you with the Services available via the App (inter alia, food detection and recognition function), developing and improving such Services.

For the avoidance of doubt, you acknowledge and agree that you provide the above license and right with respect to the User Content without the requirement to make any payment to you or to any third party. You also agree that you will not pursue or demand from us, our successors, affiliates, agents, assigns or from anyone authorized to act on our behalf any charges or fees in relation to the copyright to the User Content that you uploaded to the App.

Hereby you also agree that User Content does not contain any personally identifiable information (i.e. human faces or other identifiable parts of human body, images depicting appearance or location, documents revealing identity or other personal identifiers) related to you or other individuals.

In addition, you agree not to upload via the App any User Content that: (i) is or may reasonably be considered to be illegal, defamatory, libelous, immoral, harmful, misleading, deceptive, fraudulent, indecent, hateful, racially or religiously biased or offensive, slanderous, obscene, pornographic, sexually explicit, or that encourages anyone to violate any local, state, national or international law; (ii) infringes any third party’s copyright, patent, trademark, trade dress, trade secret or other intellectual property right(s) and/or publicity rights, and/or the right to privacy; (iii) contains any malicious code, such as viruses, worms, Trojan horses or other potentially harmful programs, codes or material; (iv) breaches your contractual or fiduciary obligation(s) owed to a third party; or (v) otherwise violates any applicable law, rule, regulation or statute.

User Content that is considered inappropriate - offensive, legally prohibited or immoral, or simply does not fit the purpose of the App - will be blocked without any prior notice or restoring options. Bear in mind that certain restrictions apply with respect to User Content (check Section VII for more details).

If you want to learn more information about third parties with whom your User Content may be shared for the purpose of providing you with the full scope of services available via the App, review our Privacy Policy.

NEWSLETTERS

All users who are registered within the App by choosing the option “Sign in with Apple” or who otherwise have provided information about email address are subscribed to our newsletters. Such newsletters are sent to user emails from time to time and are intended to inform users about special subscription offers, new features and functionalities of the App and other current issues and news related to the operation of the App. You can unsubscribe, opt-out of receiving our newsletters at any time by using the resignation link provided in each email you receive from us.

Note that all content contained in our newsletters is owned by AIBY Inc. and provided to you as a part of the App’s Services.You may use and share such content only for your personal non-commercial purposes.

THIRD PARTIES’ MATERIALS INCORPORATED INTO THE APP 

The FatSecret Platform API is used in order to display and obtain a portion of the content available via the App (some recipes and nutrition data). Thus, by using our App you automatically agree to comply not only with the terms of the present Agreement, but also to be bound by FatSecret Platform API Terms of Use. 

VII. PROHIBITED BEHAVIOR

You agree not to use the App in any way that:

-    is unlawful, illegal or unauthorized;

-    is defamatory of any other person;

-    is obscene or offensive;

-    infringes any copyright, database right or trademark of any other person;

-    advocates, promotes or assists any unlawful act such as (by way of example only) copyright infringement or computer misuse.

Representations and warranties with respect to User Content uploaded by a user to the App.

By uploading, submitting any User Content to the App you represent, warrant and undertake to us the following:

- you are the author and/or exclusive copyright holder of all User Content that you upload, submit via the App or you have obtained all necessary rights and permissions of the relevant owner of such content so that you have all relevant rights in your User Content to enable you to use it within the App according to the terms of present Agreement;

- you have not licensed any rights in your User Content that will be in conflict with your use of such content in the App according to this Agreement;

- your User Content does not contain any third party materials that you do not have permission to use.

Other general restrictions and terms related to the use of the App.

You shall not make the App available to any third parties. In addition, you shall not modify, translate it into other languages, reverse engineer, decompile, disassemble or otherwise create derivative works based on the App or any documentation related to it.

You shall not transfer, lend, rent, lease, distribute the App, or use it for providing services to a third party, or grant any rights to the App or any documentation concerning the App to a third party.

Misuse of any trademarks or any other content displayed on the App is prohibited.

You shall not copy, duplicate, distribute, publish and/or use any content of the App, directly or indirectly, in a way that constitutes a violation of our Intellectual Property Rights.

You shall not make any attempts to use the App or part thereof for malicious intentions.

We are not responsible for the way you use the App.

We are entitled to adopt, against any user who violates the present Agreement, any legal measures at our disposal pursuant to the applicable laws.

VIII. AVAILABILITY OF THE APP, SECURITY AND ACCURACY

In order to use the App, you are required to have a compatible mobile phone or tablet, and internet access. 

The App is available for downloading and installing on handheld compatible mobile devices running Apple iOS Operating System 14.0 or later. 

We do not warrant that the App will be compatible with all hardware and software that you may use.

You acknowledge that the App requires Internet connection, therefore, the quality and availability of the App may be affected by factors beyond our control.

Please note that we may change or update the App without notifying you. We may suspend your access to the App, or close it indefinitely in case we have a valid reason for that.

You also warrant that any information that you submit to us is true, accurate and complete, and you agree to keep it up-to-date at all times.

The version of the App may be upgraded from time to time for the sake of adding new functions and services. You can discontinue using our Services at any time by choosing the relevant option in your Apple ID Account Settings. If you decide to stop using the App for any reason you should uninstall the App.

IX. CHARGES

The App is provided on a free basis. Once you download the App, you will have access to its basic features.

Access to some services and/or additional features within the App (“Premium options”) requires In-App Purchases, including paid subscriptions. The full list of Premium options and pricing are provided on the App’s page. You may have an opportunity to try Premium options during the free trial period as provided on the signup screen. After the free trial period expires an auto-renewing subscription period will start on a regular basis. Please mind that you will be charged automatically unless you cancel your subscription at least 24 hours before the end of the free trial period.

You can choose different subscription options. Prices for different subscription options are indicated in the Information section on the App’s page. Prices are in U.S. dollars and may vary in countries other than the U.S. You will have all necessary information about your subscription plan and duration of the free trial period on the signup screen before the purchase.

Subscription with a free trial period will automatically renew to a paid subscription. Any unused portion of the free trial period, if offered, will be forfeited when the user purchases a subscription, where applicable. We reserve the right to modify, terminate or otherwise amend our offered subscription plans at any time. 

Your subscription will be automatically renewed within 24 hours before the current subscription ends. Auto-renew option for subscription made through the Apple App Store can be turned off in your Apple ID Account Settings at least 24 hours before the end of the current period. Payment will be charged to Apple ID Account at confirmation of purchase. No cancellation of the current subscription is allowed during the active subscription period. Subscriptions made through the Apple App Store are managed by you.  

Note that if you have purchased the subscription on the App’s Website, you will not be able to control it through the Apple App Store. Instead, you may cancel your subscription via the cancellation link provided in the email confirming the subscription purchase, via email: [email protected] or our support form. Please be sure to do so at least 24 hours before the trial period ends to prevent unwanted charges.

Please note that removing the App from your device does not deactivate your subscription.

You may be charged by your communications service provider for downloading and/or accessing the App on your mobile phone or tablet device, so you should check the terms of agreement with your operator. This may include data roaming charges if you download/access the App outside the state of your permanent residence. All these charges are solely your responsibility. If you do not pay the bills related to your mobile phone or tablet device, then we assume that you have the permission from the person that does it before incurring any of these charges.

X. THIRD PARTY WEBSITES AND RESOURCES

The App may link you to other sites on the Internet and contracted third parties to provide you certain services. We have no control over and accept no responsibility for the content of any website or mobile application to which a link from the App exists (unless we are the provider of those linked websites or mobile applications). Such linked websites and mobile applications are provided “as is” for your convenience only with no warranty, express or implied, for the information provided within them.

You acknowledge that you must comply with applicable third party terms of agreement when using the App. You are solely responsible for and assume all risk arising from your use of any third-party websites or resources.

If you have any queries, concerns or complaints about such third party websites or mobile applications (including, but not limited to, queries, concerns or complaints relating to products, orders for products, faulty products and refunds) you must direct them to the operator of that third party website or mobile application.

XI. DISCLAIMER OF WARRANTIES

YOU AGREE THAT YOUR USE OF THE APP AND ITS SERVICES SHALL BE AT YOUR SOLE RISK. THE SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, CONTENT INTEGRATED IN THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE MERCHANTABILITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICE, PRODUCTS OR MATERIAL PROVIDED PURSUANT TO THIS AGREEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED ON OR THROUGH THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

MEDICAL DISCLAIMER

The App does not provide medical services or professional advice of the licensed practitioners.

Note that the App as well as all content, information and the services displayed or available via the App are provided strictly for educational and general information purposes only. We are not and do not claim to be doctors, nutritionists, nurses, registered dietitians, licensed health practitioners or other healthcare professionals. We also have no expertise in determining the effect of any specific diet, nutrition or health advice and/or physical training on your health and/or medical condition.

Therefore, the App, as well as its content, information and services are not intended to be and are not professional advice, diagnosis, treatment or replacement of visit and/or consultation of any doctor, nutritionist, nurse, registered dietitian, licensed health practitioner or other healthcare professional. The App, its services, content and information are not designed to provide any medical services, medical professional diagnosis, examination, expertise, prevention, cure or treatment of medical conditions of any kind, inter alia, any disease, pain, deformity, injury, disorder, physical or mental illness.

You should always seek professional medical advice of licensed and qualified physician or other healthcare professional before making any health decision, starting new diet program, changing your diet, following nutrition recommendations available via the App or before using any recipe from the App if you have concerns about how you may individually react to the use of such recipe and/or recipe ingredient(s). Never disregard professional medical advice or delay in seeking it because of something you have read or learned via the App.

You are solely responsible for using any information, content or services available via the App and/or for any decision regarding health and health care. You understand and agree that we are not responsible to you or any other person or entity for any claim, loss, liability, health problem, injury or damage caused or alleged to be caused directly or indirectly as a result of the use, application and/or interpretation of any information or content available through the App. If you follow any nutrition advice available via the App, change your diet, start a new diet program or otherwise apply any information or content provided via the App, you agree that you do so at your own risk and are voluntarily participating in these activities.

XII. LIMITATION OF LIABILITY

IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES OF ANY TYPE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN ANY WAY RELATED TO THE APP AND SERVICES PROVIDED BY THE APP. WE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSS OF PROFIT OR REVENUES, EVEN IF WE HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO PRODUCTS, SERVICES AND/OR INFORMATION OFFERED OR PROVIDED BY ANY THIRD-PARTIES AND ACCESSED THROUGH THE APP OR BY ANY OTHER MEANS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR COSTS OR DAMAGES ARISING OUT OF PRIVATE OR GOVERNMENTAL LEGAL ACTIONS RELATED TO YOUR USE OF ANY OF THE APP AND ITS SERVICES IN ANY COUNTRY.

XIII. LEGAL COMPLIANCE

You must represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

XIV. THIRD PARTY BENEFICIARY

You acknowledge and agree that Apple, and Apple’s subsidiaries are the third party beneficiaries of the present Agreement, and that upon your acceptance of the terms and conditions of the present Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as a third party beneficiary thereof.

XV. GOVERNING LAW AND CLAIMS

Choice of law and choice of forum clauses. The present Agreement shall be governed by and construed in accordance with the laws of the State of Florida, USA.

All disputes and claims, suits, causes of action or proceedings between the parties to this Agreement, whether sounding in contract, tort, equity, law, or otherwise, including those arising out of or related to this Agreement, inter alia, pertinent to its performance, alleged breach shall be (i) governed by, construed in accordance with substantive and procedural laws of the state of Florida, USA, excluding and without giving effect to its choice of law provisions; and (ii) exclusively decided by the courts of competent jurisdiction of the state of Florida, USA, to the exclusion of other courts and fora.

We make no representations that the App is appropriate or available for use outside of the USA. Those who access or use the App from other jurisdictions do so at their own volition and are responsible for compliance with local law.

If you choose to access or use the App from or in locations outside of the United States, you are responsible for:

a) ensuring that what you are doing in that country is legal; and

b) the consequences and compliance by you with all applicable laws, regulations, bylaws, codes of practice, licenses, registrations, permits and authorizations. 

Class Action Waiver. WHILE RESOLVING ANY DISPUTE WITH US AND/OR SEEKING ANY RELIEF FROM US YOU EXPRESSLY AGREE TO WAIVE THE RIGHT TO PURSUE AND/OR PARTICIPATE IN ANY TYPE OF CLASS ACTION LAWSUITS AND/OR PROCEEDINGS.

If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the App and the Services provided by the App or this Agreement, then you and us agree to send a written notice to each other providing a reasonable description of the dispute, along with a proposed resolution of it. The notice shall be sent based on the most recent contact information. For a period of sixty (60) days from the date of receipt of notice from the other party, you and us will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or us to resolve the dispute on terms which either you or us, in each of our sole discretion, are uncomfortable with.

XVI. TERMINATION

We reserve the right to terminate this Agreement at any time at our sole discretion for any reason.

Upon any termination, (a) the rights and licenses granted to you herein shall terminate; (b) you must cease all use of the App.

XVII. SEVERABILITY

If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, that provision shall be more narrowly construed so that it becomes legal, valid and enforceable or, if this is not possible, deleted. The other terms of this Agreement shall continue to apply with full force and effect. 

You shall not assign or transfer or purport to assign or transfer the contract between you and us to any other person.

XVIII. CONTACT INFORMATION

We reserve the right to respond to user support requests. If you want to submit a support request or have any questions about this Agreement or the App, please contact us via our support form.